United States v. Constantine Kallas

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 28, 2014
• Docket: 11-50118
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAR 28 2014

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 11-50118

Plaintiff - Appellee, D.C. No. 5:08-cr-00128-TJH-1

v. MEMORANDUM*

CONSTANTINE PETER KALLAS,

Defendant - Appellant.

Appeal from the United States District Court for the Central District of California Terry J. Hatter, District Judge, Presiding

Argued and Submitted March 4, 2014 Pasadena, California

Before: FERNANDEZ and GRABER, Circuit Judges, and ZOUHARY,** District Judge.

A jury convicted Defendant-Appellant Constantine Kallas, a former attorney

in the Office of the Chief Counsel within U.S. Immigration and Customs Enforcement

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

** The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by designation. (“ICE”), of 36 counts of conspiracy, bribery, obstruction, immigration fraud, false

statements, aggravated identity theft, workers’ compensation fraud, and tax evasion.

The convictions arose from a scheme in which Kallas and his wife and co-defendant,

Maria Kallas, extracted payments from illegal aliens in exchange for assistance in

obtaining immigration benefits for the aliens. The district court sentenced Kallas to

a within-Guidelines sentence of 212 months of imprisonment and ordered him to pay

$296,865.45 in restitution for the workers’ compensation fraud convictions.

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 and affirm

Kallas’ convictions and sentence.

1. The government presented sufficient evidence to support Kallas’

convictions for Counts 2–5 and 7 because, viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of bribery. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). Kallas

argues the government failed to present evidence that he used his official position at

ICE to obtain immigration benefits. However, the fraud prong found in subsection

201(b)(2)(B) of the bribery statute does not contain such an official-position nexus

requirement. See United States v. Leyva, 282 F.3d 623, 626 (9th Cir. 2002) (“[U]se

of an official position is not an element of the offense under § 201(b)(2)(B).”). The

2 government also presented evidence that Kallas used his official position to access

restricted files and databases to further his crimes.

2. Because there is no official-position nexus requirement, Kallas’ argument

that the indictment was insufficient for failing to allege such a nexus necessarily fails

as well.

3. The fraud prong of the bribery statute, 18 U.S.C. § 201(b)(2)(B), is not

unconstitutionally vague as applied to Kallas because the evidence demonstrated that

Kallas was an ICE attorney who took money from aliens in exchange for committing

a fraud on the United States, which included accessing restricted data. See United

States v. Naghani, 361 F.3d 1255, 1259–60 (9th Cir. 2004).

4. The second superseding indictment was sufficient because it provided

ample notice of the charges, United States v. Hinton, 222 F.3d 664, 672 (9th Cir.

2000); and the district court did not abuse its discretion when it denied a motion to

strike portions of the second superseding indictment as surplusage. See United States

v. Laurienti, 611 F.3d 530, 546–47 (9th Cir. 2010).

5. The district court properly instructed the jury that Kallas’ inability to

perform the promised act was no defense to the bribery charges. See United States v.

Hsieh Hui Mei Chen, 754 F.2d 817, 825 (9th Cir. 1985) (rejecting challenge to

3 instruction that “a person may be convicted of bribery even though the action

requested is not within the official’s power to perform”).

6. Reviewing de novo, United States v. Jones, 286 F.3d 1146, 1150 (9th Cir.

2002), we hold that the district court properly denied Kallas’ motion to suppress

because the search warrant for Kallas’ home was not overly broad. The protocols for

handling electronic data and potentially privileged material were complementary and

did not allow for “‘a general, exploratory rummaging.’” United States v. Bridges, 344

F.3d 1010, 1016 (9th Cir. 2003) (quoting United States v. Rude, 88 F.3d 1538, 1551

(9th Cir. 1996)). Further, the 91-page supporting affidavit contained probable cause

to search for the listed electronic devices.

7. Reviewing for plain error, United States v. Sanchez, 659 F.3d 1252, 1256

(9th Cir. 2011), we hold that the prosecution did not commit misconduct by making

“send a message” arguments during closing, see United States v. Wilkes, 662 F.3d

524, 542 (9th Cir. 2011), and the prosecution’s exhortation to the jury to apply

common sense, when put in context, did not improperly alter the burden of proof, see

United States v. Redlightning, 624 F.3d 1090, 1123 (9th Cir. 2010).

8. Kallas contends his sentence is procedurally unreasonable because the

district court failed to discuss fully the disparity between Kallas’ sentence and that of

his co-defendant wife, who pled guilty to a subset of charges, and other bribery

4 defendants in other cases. However, the record reflects the district court carefully

considered Kallas’ disparity argument as part of its analysis of the 18 U.S.C.

§ 3553(a) sentencing factors, provided a well-reasoned and thorough explanation for

the sentence imposed, and noted how Kallas differed from his wife and defendants in

other cases. The district court did not procedurally err. See United States v. Carty,

520 F.3d 984, 992 (9th Cir. 2008) (en banc).

9. Kallas’ within-Guidelines sentence is substantively reasonable in view

of the totality of the circumstances. See Carty, 520 F.3d at 993. The district court had

no obligation to reject the bribery Guidelines for policy reasons. See United States v.

Henderson, 649 F.3d 955, 964 (9th Cir. 2011).

10. Finally, the district court did not plainly err when it concluded

$296,865.45 in losses flowed directly from the workers’ compensation fraud

convictions. See United States v. May, 706 F.3d 1209, 1214 (9th Cir. 2013).

AFFIRMED.